Jacobs Bros. Walkover Boot Shop v. Bel

WESTERFIELD, J. The defendant appeals from a judgment against him and in favor of plaintiff in the sum of $113.10. The petition alleges that the defendant was employed by plaintiff as a salesman upon a commission basis only and was allowed to draw a certain sum weekly, which sum was to be accounted for by defendant monthly when a balance was struck between the commissions earned and the sums advanced. Defendant denies that he was employed on a commission basis, alleging that he was employed at a salary of $35.00 per week, and denies that he owes the plaintiff any sum whatever. The record discloses the fact that the plaintiff relies upon a certain statement purporting to have been taken from its books showing the amount of commissions earned by and payments made to the defendant. This statement, though annexed to the petition as part thereof, was not offered in evidence. It cannot be considered by us. Marchand vs. H. T. Coffee and Wallace & Co., 23 La. Ann. 442. See also Wilkin-Hale State Bank vs. Tucker, 148 La. 980, 88 So. 239; Billich vs. Mathe, 149 La. 484, 89 So. 628. Under the circumstances we have concluded to remand the case. It is therefore ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and this case be remanded to the First City Court for further proceedings not inconsistent with the views herein expressed.